¶1 We concur in the opinion of his Honor, that the summary mode of proceeding can only be resorted to where the clerk has "admitted money to be due" in the manner prescribed by Rev. Code, ch. 73, sec. 1. On a perusal of the statute, this is so clear as not to admit of discussion.
¶2 PER CURIAM. Affirmed.
¶3 (99)
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Case posture Posture MOTION for summary judgment, tried before Osborne, J. , at Fall Term, 1860, of BUNCOMBE.
This was an action beginning by motion, brought by plaintiff, as county trustee of Buncombe, to recover of the defendants as sureties to the official bond of W. T. Coleman, late clerk of the Superior Court of Buncombe, for moneys paid to their principal at April and October terms, 1851, in his official capacity. Mr. Coleman was sworn in as clerk at October Term, 1849, for four years. He went out of office in October, 1851, and died soon after. The amount alleged to be due was ascertained by an investigation and report of a committee of finance, which was admitted as proof, but no report of money in the office had been made by the clerk, and it was contended that the form of proceeding did not apply in this case, and the court being of this opinion, the plaintiff submitted to a nonsuit and appealed. Source: CourtListener
